Tag: dividing property

Equitable Distribution of Human Organs

Posted by Ron Kauffman on

If you promise to love someone with all your heart, can you ask a court for an equitable distribution of your donated human organs back? One very upset New York organ donor spouse is asking the court to be made whole again.

equitable distribution organs

Kidney Pains

Richard Batista, a 49-year-old doctor from Ronkonkoma who graduated from Cornell University Medical School in 1995, married Dawnell Batista on August 31 1990. The couple had three children, then ages 14, 11 and 8.

After Dawnell had two failed kidney transplants, her husband donated one of his kidneys to his wife in an operation that took place at the University of Minnesota Medical Centre on June 18 2001. Richard Batista said his marriage at the time was on the rocks because of the strain of his wife’s medical issues.

“My first priority was to save her life. The second bonus was to turn the marriage around.”

Four years later, Dawnell sued her husband for divorce, alleging domestic violence and infidelity.  One week before the divorce trial was scheduled to begin, Richard announced he was seeking a stay of the case until his retained “expert” could give an opinion to the court estimating how much his kidney was worth.

After Dawnell filed for a divorce, Richard wanted the court to either award him his kidney back as part of his settlement demand, or credit him in the equitable distribution the fair market value of his donated kidney – an estimated cool $1.5m.

Florida Equitable Distribution

I have written about equitable distribution in Florida before. In a proceeding for dissolution of marriage, in addition to all other remedies available to a court to do equity between the parties, a court must set apart to each spouse that spouse’s non-marital assets and liabilities.

However, when distributing the marital assets between spouses, a family court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors.

In Florida, nonmarital assets include things such as assets acquired before the marriage; assets acquired separately by either party by will or by devise, income from nonmarital assets, and assets acquired separately by either party by non-interspousal gift. Importantly for this doctor’s divorce, will the donation of his pre-marital body part be construed as an interspousal gift?

Kidney Failure

In a 10-page decision, the Nassau County Supreme Court rejected the ex-husband’s request that it should consider his donated kidney as an item of property to be valued in the divorce suit, according to Dawnell Batista’s lawyer.

The court said “marital property” covers a lot of things, but human tissues or organs aren’t any of them. It also said that not only was Richard Batista’s attempt to extort money from his wife for the kidney he donated legally unsound:

“The defendant’s effort to pursue and extract monetary compensation therefore not only runs afoul of the statutory prescription, but conceivably may expose the defendant to criminal prosecution.”

Medical ethicists agreed that the case is a non-starter. Asked how likely it would be for the doctor to either get his kidney back or get money for it, Arthur Caplan at the University of Pennsylvania’s Centre for Bioethics, put it as:

“somewhere between impossible and completely impossible”.

What’s more, no reputable surgeon would perform such a transplant and no court could compel a person to undergo an operation, he said.

The NBC New York article is here.

Changing Property Division Law in the UK

Posted by Ron Kauffman on

With the Florida legislative season underway, it is important to keep an eye on what other legislatures are doing for family law. This is especially true with news that the UK is set to explore changing the law of property division during a divorce in England and Wales.

Property Division Law

A spanner in the works

The current property division law in the United Kingdom, the Matrimonial Causes Act 1973, has recently been criticized by people as being uncertain and unpredictable. Many argue spouses are left to turning to costly litigation due to a lack of clear guidance on how wealth should be divided.

The Law Commission, the independent agency which reviews legislation, may examine whether the act needs updating with further announcements expected “very soon”.

London has developed a reputation as a magnet for wealthy couples seeking a divorce in recent decades because of the generosity of financial awards given to ex-wives by the courts in the capital.

The English legal system tends to split the combined wealth of divorcing spouses equally even if one partner is the breadwinner. This is similar to the United States, but is in contrast to many European countries, where financial awards are far less generous and maintenance is only given for a limited number of years.

Under the current law, spouses who go to court can spend thousands on legal fees because legal aid is no longer available for most types of family law, and the drawn-out court battles can be detrimental to children.

Florida Property Division

I’ve written about the subject of property division in Florida many times before. Property division, or equitable distribution as it is called in Florida, is governed by Florida Statutes as interpreted by case law.

Generally, courts set apart to each spouse their nonmarital assets and debts, and then distribute the marital assets and debts between the parties. In dividing the marital assets and debts though, the court must begin with the premise that the distribution should be equal. However, if there is a justification for an unequal distribution, the court has the authority to award an unequal distribution of marital assets.

However, the court must base an unequal distribution on certain factors, including: the contribution to the marriage by each spouse; the economic circumstances of the parties, the duration of the marriage, or any interrupting of personal careers or education.

It has been a long-standing rule in Florida that an unequal distribution of marital assets may be justified to compensate for things such as a spouse’s intentional dissipation, waste, depletion or destruction of marital assets.

Parliamentary Chinwag

The status of prenuptial agreements in the UK may also be considered. Prenuptial agreements in the UK are legal documents specifying how assets are to be divided when the marriage ends. Prenuptial agreements are now recognized by UK courts following a seminal 2010 Supreme Court involving a German paper industry heiress.

But legal experts believe prenuptial agreements in the UK should be put on to a more formal, statutory footing and enshrined in law. Others complain the legislation, which has been subsequently developed by judge-made case law, allows judges to use their discretion to assess each case and make different awards, creating uncertainty.

Judges have flexibility when it comes to allocating settlements but the variation in judgment, said lawyers, made it difficult to advise clients about the likely outcome of their case.

Critics of the current property division system believe obscurities in the legislation should be tackled. Lawyers highlighted regional variations in how divorces are settled. Many critics complain that London courts tend to award more generously, while many courts outside the capital prefer to give “time-limited” maintenance to financially weaker spouses.

Some argue that the law also fails to reflect the way British society has changed in the past 50 years — with women more financially independent and with dual earning couples becoming the norm.

The Financial Times article is here.

Adultery and Property Division at the Yellowstone

Posted by Ron Kauffman on

Is it 1883 at the Yellowstone Ranch? Recently, a Montana legislator proposed a new bill that would turn the clock back on no-fault divorce by allowing family courts to consider adultery when deciding on a property division. The bill would also allow the court to award attorneys’ fees and costs of a divorce in cases of adultery.

Adultery Property Divorce

Dividing the ‘Oro y Plata’

The bill says in considering how to divide up assets and property during a couple’s divorce, a court “shall” consider “physical abuse or adultery that substantially contributed to the irretrievable breakdown of the marriage” along with a host of other things, like how long they were married, their income levels, health and more.

Under House Bill 237, which saw its first hearing Friday, if a court finds the abuse or cheating “substantially” contributed to the deterioration of the marriage, it “may” order the abuser or cheater to pay “a reasonable amount” of the other spouse’s attorney’s fees.

The bill further adds that “physical abuse or adultery alone” could allow the court to split the couple’s assets disproportionately. The measure would also apply to orders in which one spouse has to cover ongoing living costs for the other.

Current law says courts have to make that decision “without regard to marital misconduct.” Under the new bill proposed:

In a case in which the court finds physical abuse or adultery substantially contributed to the irretrievable breakdown of the marriage, the court may order the offending party to pay a reasonable amount for the cost to the other party of maintaining and defending any proceeding under this chapter and for professional fees, including sums for legal and professional services rendered and costs incurred prior to the commencement of the proceedings or after entry of judgment. The court may order that the amount be paid directly to the professional, who may enforce the order in the professional’s name.

One of the proponents who testified was a woman who said she ran a domestic violence program on the Hi-Line. She said perhaps adultery and physical abuse needed to be defined, though she said she believed physical abuse included adultery.

The sponsor said he was open to a possible amendment defining each.

Florida Adultery and Property Division

I’ve written about property and adultery before. Adultery can be the cause of a divorce, but can it impact the outcome? Since Florida became a no-fault state, the fact that Beth may have cheated on Rip would not be a drama played out in court.

Interestingly, while anyone can file for divorce in Florida without proving grounds, there is still a Florida statutory basis for adultery to be an issue in your divorce proceedings. But not in the way most people think.

Florida is an equitable distribution state, and it is presumed that property should be evenly divided. This presumption may be overcome by proof that one spouse intentionally wasted marital assets. This waste is sometimes known as dissipation. Paying for expensive jewelry, foreign trips, rent, car payments, and dinners for girlfriends and boyfriends is considered wasting marital assets. The court has the power to reduce an adulterer’s equitable distribution to credit the marital estate for waste.

Adultery alone would not really be grounds for an unequal distribution if there was no dissipation. The rationale is that dealing with allegations of marital misconduct, such as adultery, would be a step back to 1923: before our no-fault system was enacted.

Big Problems in Big Sky Country

Many are opposing the bill: “This bill is giving abusive partners a legal tool to use allegations of adultery in a public forum against their spouse to harass, humiliate and intimidate them into staying in a violent relationship,” said a Missoula family law attorney who testified in opposition to House Bill 237.

An attorney who said 90% of their caseload involves survivors of domestic violence, told the House Judiciary Committee the bill, if passed, “would be devastating for survivors.”

Abusers often accuse their spouses of adultery to “exercise power and control” over them and the bill would help them utilize the justice system to continue the cycle.

The attorney also said the measure would encourage parties to litigate who is at fault for the breakdown of the marriage, which would exacerbate already costly divorce proceedings. It would also further overburden courts where half of the cases involved family law\.

A domestic violence prosecutor for the City of Billings, said he was concerned judges might believe:

“The question we always get is why doesn’t she just leave? Well, this bill will help answer that question if it passes.”

The prosecutor also explained how domestic abusers – who are usually men, he said – see their wives as property and expendable resources and themselves “almost always (as) the victim.” He said the bill treats violence and adultery as the “exact same thing. Leveling accusations of domestic violence requires some sort of proof, and remember, one of these things is illegal; the other is not.”

The Daily Montanan article is here.

Equitable Distribution of Boudoir Photos in Divorce

Posted by Ron Kauffman on

How a family court decides the equitable distribution of boudoir photos, complete with intimate inscriptions and nude photographs, is never easy. A Utah family court recently ordered a woman to hand over her most intimate photographs to her ex-husband and a third-party photographer he chose.

Equitable distribution Boudoir

‘Utah: Life Elevated’

A former wife was married for 25 years and together for 27. As expected, the process of splitting their assets would be complex in a long marriage. The issue became so complex, negotiations failed and a one-day bench trial had to be held.

After the trial, the family judge ordered the former wife to surrender her most intimate photographs of herself to a third-party photographer for editing, and then ordered that the edited photos be given to her ex-husband for his viewing pleasure.

“You don’t know where to turn because you don’t know the law and you have not only your ex-husband who you were married to for years (thinking) that forcing you to distribute basically porn is OK … you have his attorney that also thinks that’s OK. And then you bring it in front of a judge, and he thinks it’s OK.”

The family court’s finding of facts dated July 7th — the day the divorce was finalized — found that the nude photos were given as gifts to the former husband earlier in their marriage, and therefore he “has the right to retain them and the memories they provide.”

The court also found the former wife has a right for her intimate photos to not be in her ex-husband’s possession. So how did the family judge decide the steamy issue? The judge ordered her to turn the images over to the original photographer for editing.

That person is then to do whatever it takes to modify the pages of the pictures so that any photographs of the former wife in lingerie or that sort of thing or even without clothing are obscured and taken out, but the (photo inscriptions) are maintained for the memory’s sake.

Florida Equitable Distribution

I have written about equitable distribution in Florida before. In a proceeding for dissolution of marriage, in addition to all other remedies available to a court to do equity between the parties, a court must set apart to each spouse that spouse’s non-marital assets and liabilities.

However, when distributing the marital assets between spouses, a family court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors.

In Florida, nonmarital assets which are not divided include things such as assets acquired before the marriage; assets you acquired separately by non-interspousal gift, and assets excluded as marital in a valid written agreement.

Conversely, marital assets which are subject to division, generally include things like assets and liabilities acquired during the marriage, the enhancement in value of some nonmarital assets – and for anyone giving their spouse a gift of sensual boudoir photographs – interspousal gifts during the marriage.

Wisdom of Solomon

Despite the ruling, the original photographer refused to edit the images over a concern about ethics and legal repercussions to her photography business. Being a boudoir photographer, her clients trust her with their images and privacy, and the photographer took that responsibility seriously.

The judge then made a second ruling, and ordered the former wife to give the images to a different photographer for editing. She was also ordered to retain the original photos for 90-days before destroying them, in case her ex-husband wasn’t satisfied with the edits.

The former wife said her ex-husband isn’t happy with the edited photos, though she feels that she has complied with the court’s order, and she feels that her ex-husband’s demand for the photos was an attempt to control and hurt her.

“If all he was truly interested in was the inscriptions, he got those. I’ve complied with the court’s order, even though I believe strongly that (the) order (is) violating on many levels and has affected my emotional and mental health. I can’t imagine doing this to someone else.”

The ex-husband said his former wife’s description of the situation is her perspective. This is not my perspective nor the perspective of an impartial judge. It appears that she has intentionally misrepresented and sensationalized several aspects of a fair proceeding to manipulate the opinions of others for attention and validation of victimhood.

One attorney was quoted as saying equitable distribution in a divorce always involves a balancing of interests but the judge here has just made a mistake in the balancing of interests and has tipped things much too far in one direction.

The Salt Lake Tribune article is here.

Divorce and Digital Accounts

Posted by Ron Kauffman on

Many couples are not only tied together in matrimony, but in their digital accounts too. If roughly half of marriages end in divorce, how do courts manage an equitable distribution of digital accounts such as Netflix, Amazon, Apple (and with House of the Dragon underway) HBO?

Digital Divorce

Stranger Things

The Washington Post reports that the average American has upwards of 150 digital accounts, according to password-management company Dashlane. That’s a decades-long record of an autonomous life lived online.

If a breakup is going to be an ugly one, a vindictive ex-spouse can cause a lot of digital damage. For instance, if you share cloud storage, or an Apple ID with your ex-spouse, there is a risk everything – from your photos and documents to your browsing and email history can be revealed.

Moving out of the marital home is already a hard and emotional decision. But, now you are faced with taking precautions when you are about to leave your digital home.

As soon as divorce becomes a reality, you need to decide if it’s time to change all the passwords to the accounts you plan on keeping after separation. This is especially true if you share devices like a computer or tablet. Many sources tell you to remember your passwords and create new ones for each account.

Florida Equitable Distribution

I have written about equitable distribution in Florida before. In a proceeding for dissolution of marriage, in addition to all other remedies available to a court to do equity between the parties, a court must set apart to each spouse that spouse’s non-marital assets and liabilities.

However, when distributing the marital assets between spouses, a family court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors.

In Florida, nonmarital assets include things such as assets acquired separately by either party by will or by devise, income from nonmarital assets, and assets excluded as marital in a valid written agreement.

Importantly for a hi-tech divorce, non-marital assets would include assets acquired and liabilities incurred by either party before the marriage, and assets acquired and liabilities incurred in exchange for such assets and liabilities.

Netflix and Chill?

In some cases, a couple can divide, close, or even trade digital assets and decide which of the two households will keep an account. Sharing a Netflix account within your household, for example, may save money. But after divorce keep in mind that account sharing is only permitted for users within the same household. Netflix has announced it will crack down on illegal account sharing.

Putting aside the streaming services, like Netflix, which can easily be closed or limited, many couples may need to continue to share access to certain online accounts, even after a divorce or separation.

It is not hard to see why some accounts might need to stay active. For example, a couple’s joint checking account and credit card account may need to remain active so that certain bills during the divorce can be timely paid. Electronic access to statements and transactions; automatic bill payment services, medical insurance and cloud storage and document sites for photos and important documents and other files may be necessary too.

The law has not caught up with the digital divorce. There are no specific statutes for sharing accounts or establishing consequences should an ex-spouse or spouse change a password to lock out shared accounts.

Depending on the account, you may need to share a single login, set up separate logins to access the same account, or create a new, separate account in your own name. Anyone considering divorce has to secure their online identity, protect their passwords, protect their privacy, and most likely divide or close the shared streaming services.

The Washington Post article is here.

Equitable Distribution of Google Stock

Posted by Ron Kauffman on

Scott Hassan, known by some as the third Google founder, is finally headed to his divorce trial after nearly seven years battling over the equitable distribution of Google stock, real estate, and other technology stock – estimated to be worth billions of dollars.

Equitable Distribution Google

“I’m Feeling Lucky”

As the divorces of Bill Gates and Jeff Bezos show, technology billionaires are trying to divorce quietly, behind closed doors. For example, when Google co-founder, Sergey Brin divorced his ex-wife, he hired a private judge to hash out the details.

A quick Google search shows that Hassan and Huynh’s divorce is anything but quiet. Huynh accuses her husband of engaging in “divorce terrorism,” such as creating a negative website called AllisonHuynh.com.

The site contains documents posted of sexual allegations related to Huynh’s wrongful termination suit against her former employer. They claim that Huynh threatened to “kill [her former employer] and then herself” if he ever left her and “kept track of when [her former employer] was out with a new girlfriend,” according to the cross complaint filed by [her former employer] and his attorney in response to Huynh’s suit.

After being accused of creating it, Hassan admitted to launching the site, seeding it with links to articles written about his ex — and links to court documents from three embarrassing lawsuits that involve her.

When confronted, he purportedly admitted to The Post:

“I did, but I have taken it down. It came together in a moment of frustration, when I felt Allison and her attorney were telling one-sided stories to the press. I thought aggregating publicly available information without commenting or editorializing would help … It only ended up making our dispute more public and tense, which was never what I intended.”

According to sources, in 2018, their estate was valued at $1.8 billion and he wants to give her a minuscule fraction.

Florida Equitable Distribution

I have written about equitable distribution in Florida before. In a proceeding for dissolution of marriage, in addition to all other remedies available to a court to do equity between the parties, a court must set apart to each spouse that spouse’s non-marital assets and liabilities.

However, when distributing the marital assets between spouses, a family court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors.

In Florida, nonmarital assets include things such as assets acquired separately by either party by will or by devise, income from nonmarital assets, and assets excluded as marital in a valid written agreement.

Importantly for this hi-tech divorce, non-marital assets would include assets acquired and liabilities incurred by either party before the marriage, and assets acquired and liabilities incurred in exchange for such assets and liabilities.

“I’m Feeling Wonderful”

Mr. Hassan was a research assistant at Stanford’s computer science department when he met Larry Page, then a Ph.D. candidate. When Larry and Sergey Brin founded Google in 1998, Hassan bought 160,000 shares for $800. In 2004, the shares were worth more than $200 million. The shares, now in Google’s parent company, Alphabet, would be valued at more than $13 billion today.

In 2001 they married in Las Vegas and there was no prenuptial agreement, and they barely discussed finances. Ms. Huynh says she supported the family financially in the early years but her husband denies that.

In 2006, during the marriage, the husband formed a limited liability company called Greenheart Investments. Greenheart was valued at more than $1 billion in 2015.

Huynh wants Greenheart to be considered community property because Hassan repeatedly muddied the line between his separate assets and their community property. But Hassan argues that the company should be considered his separate property because it was started with his pre-marital assets.

Hassan acknowledged during court proceedings that he had set up Greenheart as his own company to keep certain assets ‘completely separate’ from Allison.” She insists it is community property — which partners must, typically, divide equally under California law.

Hassan maintains “that the disputed assets are properly characterized as my separate property — this does not necessarily mean that the community, or Allison, will not be compensated,” Hassan said. “I already agreed to provide her with a significant amount of money every month.”

But Huynh purportedly told The New York Post:

“His miserly position is ludicrous. I pray that a Big Tech billionaire will not get away with his attempt to cheat his children and me while he walks away with everything.”

The New York Times article is here.

 

A Fast and Furious Divorce Property Division

Posted by Ron Kauffman on

Jordana Brewster’s divorce got expensive. The Fast and Furious star’s property division comes at a steep price as she has to buy out her ex-husband from their Los Angeles former marital home.

Fast & Furious 5,000,000

According to news reports, Brewster, 41, agreed to pay her ex-husband, Andrew Form, $5 million as part of their divorce settlement, The figure represents his half of their marital home in Los Angeles, which she will keep.

Additional details of the divorce settlement include that any income Brewster makes from the latest “Fast and Furious” movie is her separate, non-community property.

Her producer ex-husband also agreed that any income either earns “as a result of their personal and professional effort” from May 13, 2020 and beyond “shall be the separate property of the earning party.”

Neither Brewster nor Form will receive or pay spousal support. While a judge still needs to sign off on their agreement, Brewster and Form are legally single and co-parenting their two sons.

Florida Divorce and Property Division

I’ve written about houses and property divisions before. California is a community property state, but Florida is an equitable distribution state. In Florida, every divorce requires the court has to set apart nonmarital property, and distribute the marital property.

Florida judges always begin with the premise that the property distribution should be equal, unless there is a reason for an unequal distribution based on several factors.

One of the factors the court has to consider is the desirability of keeping the home for the kids or a spouse, if it’s equitable to do so, if it’s in the best interest of the child, and financially feasible.

Some spouses decide to sell but schedule the sale months or years into the future. This happens when a couple has kids, and both parents agree that the house shouldn’t be sold to preserve the school district or allow for easier timesharing.

There are other problems in a keeping a house in which your name is still on title. In the even that your ex-spouse does not pay the mortgage timely, your own credit will suffer the late notices.

And, if someone invited to your old home is hurt, that person will sue the record title owners for their damages. If your name is on title as an owner, that’s you! Making sure you have decent insurance on the house may be in order.

Many communities are experiencing a red hot real estate market. If you can’t wait for years, and need to sell immediately, there’s a silver lining in addition to this being a seller’s market. A fresh start and new beginning after a complete division of all of the assets tying you together with your Ex is the best way to go forward for some people.

However, there’s a cost of sale. When you sell your house, you pay a commission, and other expenses, like taxes, title expenses, repairs which can average about 10 percent of the sale price.

The California Marriage Massacre

Brewster and Form met while working on “The Texas Chainsaw Massacre: The Beginning.” Form was a producer on the film.

“We started dating in secret — you know, hanging out in my trailer — because it would have been unprofessional otherwise,” she previously told InStyle Weddings (via People). “But every day, Andrew wore these work boots to the set, and if I was lying down in the shot or there was equipment in the way, I’d look for his shoes. It was comfortable just to know he was nearby.”

They called it quits after 13 years of marriage in June 2020, and the actress filed for divorce the following month. In a deeply personal essay she wrote for Glamour, Jordana says she was compelled to divorce Andrew due to their vastly different schedules.

‘Most of why my marriage didn’t work was not my ex-husband’s fault,’ she said. ‘He loves work. He loves being on set, on location. I knew this from ages 27 to 32, but it became a problem for me once the kids were older. I wanted a partner.’

‘So, toward the beginning of the pandemic, Andrew and I decided to separate. The combination of being apart for most of the year for many years and growing apart emotionally took its toll.’

Just days after their separation, Jordana would reconnect with her current boyfriend Mason Morfit, whom she first met a few years earlier when they were both still married to other people.

‘Four days after I separated from Andrew, I was on a plane to San Francisco to visit this man I had met only once but who had stayed on my mind. I knew he’d been separated for two years. I wanted to see him, to confirm whether the image I’d built up in my mind matched reality. What I got was far more than I expected.’

During a time when the world avoided all contact, when it was mandated that everyone stay six feet apart, Mason and I blended into each other.’

The couple shared a five-minute long embrace and a kiss when they reunited at the airport. As far as Andrew, the movie producer has since moved on with actress Alexandra Daddario, who debuted their romance in May 2021 with a kissing snap.

‘I love you . . . and even that is an understatement,’ she captioned the photo.

The Fox News article is here.

Modern Family Problems Divorce and the Home

Posted by Ron Kauffman on

Divorce and what to do with the home is in the news now that Modern Family actress, Julie Bowen, has listed her home for sale. Although she finalized her divorce from ex-husband Scott Phillips a few years ago, her case raises the issue of housing again.

Home Divorce

Hollywood Hills Home

According to many reports, the couple reached an agreement to split their assets of $25.3 million directly down the middle. In the divorce agreement, Bowen, who first filed for divorce in February, will receive more than $13 million while the real estate investor will receive $12.3 million.

In their marital settlement agreement, Bowen got to keep the Hollywood Hills house, worth $3.1 million at the time. Bowen had purchased the property after the separation.

Phillips, on the other hand, got to keep the couple’s $5.4 million marital home. Details of custody, child support and spousal support were filed in a private settlement agreement.

House and Divorce

I’ve written about the marital house during a divorce before. Generally, the home remains a marital asset, which is subject to equitable distribution, regardless of who lives there during the divorce process.

If a home is marital then both parties have equal rights to buy – out the other’s share. Both may also be on the hook for liabilities.

Until a divorce parenting plan in place, if you are interested in maintaining a meaningful relationship in your child’s life, leaving the home before a timesharing agreement is entered may show a lack of real interest in the child’s daily life.

Moving out can create the appearance of a new ‘primary residential parent’ by default. Worse, if the process takes a long time, it creates a new status quo.

The person leaving during a divorce may still have to contribute for the expenses of the home while also paying for a new home. It can be costly, and prohibitive expensive when you know that the process will take a long time.

Staying in the same home could create an incentive to negotiate a final settlement because living with your soon to be ex-spouse is very uncomfortable. However, if someone moves out, the person remaining in the home is sitting pretty and may be less inclined to settle.

Before moving out, there should be some discussions about maintaining the home and who is paying for which expenses, an inventory should be made of the personal property, artwork, silverware etc., and the boundaries for when the ‘out-spouse’ can use and enjoy the home after vacation

A Modern Family Home

The designer Hollywood Hills pad she purchased in 2017 shortly after splitting from her ex-husband was reportedly worth $3.1 million during the divorce because that was what she paid for it. The mid-century modern time capsule home just off iconic Mulholland Drive is now on the market for $3.85 million.

Designed by architect Thornton Abell, the glass-walled structure is made up of four bedrooms and three baths and spans over 3,200 square feet. Built in 1959 for prominent heart surgeon Augustus Bakos, the home was later acquired by the son of Beach Boys co-founder and guitarist Carl Wilson, who renovated the home and expanded it.

Pegged as “exceedingly private,” the property sits on a long, gated driveway and boasts pastoral canyon and treetop views. Interior features include floor-to-ceiling walls of glass, which are complemented by Palos Verdes stonework, terrazzo floors, custom divider screens and teak cabinetry.

Other interior finishes include a granite and stainless steel kitchen, an expansive master suite with a fireplace, a large walk-in closet and a terrazzo master bath with a glass ceiling.

It also boasts separate guest quarters, a small detached gym in the backyard, a poolside living room and a lush garden atrium. Bowen, 51, had been married to Phillips, a real estate investor, for over 13 years before calling it quits. They share 14-year-old Oliver and 12-year-old twins John and Gustav.

The New York Post article is here.

 

Property Division and Embryos

Posted by Ron Kauffman on

Property division of a couple’s embryos is back in the news again, and will increasingly be an important part of any divorce case, as more couples seek In Vitro fertilization and other assisted reproductive technology.

property division embryo

Modern Family

Many people recall that Modern Family actress Sofia Vergara was in a dispute with her former partner Nick Loeb over frozen embryos. They ended their engagement in May 2014, the year after they underwent in vitro fertilization treatment together, and he tried to gain full custody of the fertilized eggs to have them implanted in a surrogate.

In February a court granted Sofia a permanent injunction which would stop her former partner from being able to use the fertilized eggs to “create a child without the explicit written permission of the other person”.

Do agreements matter? When Peter Goldin, a 44-year-old communications director, and his husband decided to start a family through in vitro fertilization, they faced mounds of paperwork at the fertility clinic deciding what should happen to any remaining embryos in the case of divorce or separation?

The couple, who used one embryo to have a daughter, decided that if they broke up, Mr. Goldin would be the one who decided what to do with their one remaining embryo, since it was created with his sperm and a donor egg.

But Mr. Goldin said that when he and his husband separated last year, his husband no longer wanted him to have sole authority to determine what would happen to the embryo. “He had forgotten what he had signed at the clinic,” said Mr. Goldin, who, with the help of a lawyer, ultimately gained custody after a month of back and forth.

Florida Property Division

I’ve written about the Vergara case and the subject of property division in Florida many times before. Property division, or equitable distribution as it is called in Florida, is governed by statute and case law.

Generally, courts set apart to each spouse their nonmarital assets and debts, and then distribute the marital assets and debts between the parties.

Anyone who has been divorced knows the painful process well: disentangling finances, dividing possessions and mapping out custody arrangements for any children. And in recent years, with the use of artificial reproductive technologies on the rise, more couples have been confronting the even stickier question of what to do with frozen embryos.

In some states, consent agreements signed in fertility clinics, which can provide that embryos would be destroyed if the couple were to divorce have been determined to valid and enforceable contracts.

In New York, after a husband requested sole custody of the one remaining cryopreserved embryo and revoked his consent to use any of his genetic material, a court has narrowly read consent provisions and found such agreements permitted either party to withdraw consent to participation in the entire IVF process, and that the husband’s broadly worded revocation of consent was effective to revoke his consent to the continuation of the IVF process. The court awarded the remaining embryo to the husband, but only for the purpose of ensuring that NHF disposes of the embryo as provided in the Consent Agreement.

Divorce and Embryos

In the event of divorce, couples are not together anymore, probably don’t like each other, and if one person is going to use the embryo and have the child, that leaves the other person in an awkward spot.

For those who fail to plan for the worst, the results can be devastating. Couples who produce healthy embryos and freeze them for when they would be ready to have children face a problem years later when they want to divorce.

In many cases, judges have upheld agreements couples have signed at the fertility clinic, which say that the embryos could be brought to term only with the consent of both partners.

But as the New York Times reports:

“My state of mind at the time was complicated by cancer, being a newlywed and just this hope and opportunity to have children. It was unfathomable that that’s what would eventually determine that my last chance of having biological children would be taken away from me.”

Laws governing the disposition of frozen embryos vary from state to state. Judges have generally ruled in favor of the person who does not want to develop the embryo, but in Arizona, for example, the custody of disputed embryos goes to the party who wants to bring them to term.

Kathleen Pratt, 36, said that the process of poring over sheafs of legal documents to finalize the use of a surrogate led to several discussions with her husband, William, about what they would do with any remaining embryos if they divorced.

Ms. Pratt said her husband initially told her it made more sense to give her custody of remaining embryos — made with a donor egg and her husband’s sperm — because she was unable to have biological children. Then, Ms. Pratt said, she felt he should get to keep the embryos because they contained his genetic material, not hers.

Eventually they came to a decision: Neither should keep the embryos. Ms. Pratt, who lives in Charleston, S.C., remembers she and her husband saying to each other, “Why would we raise these babies outside of our family? If things go sour, let’s just call it a day.”

They ended up using both embryos to have a daughter in 2019 and a son last year. “I wouldn’t recommend anyone go through this with someone unless your relationship is solid,” she said.

The New York Times article is here.

Divorce Financial Mistakes

Posted by Ron Kauffman on

Avoid making costly divorce financial mistakes because money matters are often at the heart of divorce disputes, for better or worse. Since divorce is on the rise during the pandemic, be aware that aside from the cost of divorce, other parts of the process can end up costing you.

Divorce Mistake

No Mistake About It

For starters, some assets appear as if they have equal values. But, once you start to factor in the tax impacts, the assets can look very different. For example:

A hundred dollars in cash is different from shares of GameStop valued (at the time) at $100. Holding onto that stock can lead to appreciation (or depreciation) and selling the stock can have a tax impact.

Basically, the profit made on any given assets — the difference between the cost basis (generally, what you paid) and the sale price — ends up getting taxed as either a long-term or short-term capital gain once sold, depending on whether the asset was held for under or over a year.

Even if two assets have the same value right now, the cost basis for them may be different, and one will have more or less taxes than the other. Subtract those taxes from the value if you’re really going to do an equitable division.

So if the asset in question is, say, a traditional 401(k) account, withdrawals will be taxed at ordinary income tax rates.

Florida Divorce Mistakes

I’ve written on divorce issues and divorce planning. In Florida, a divorce is called a “dissolution of marriage.” Florida is one of the many states that have abolished fault as a ground for dissolution of marriage.

The only requirement to dissolve a marriage is for one of the parties to prove that the marriage is “irretrievably broken.” Either spouse can file for the dissolution of marriage.

You must prove that a marriage exists, one party has been a Florida resident for six months immediately preceding the filing of the petition, and the marriage is irretrievably broken.

The reason for the irretrievable breakdown, however, may be considered under certain limited circumstances in the determination of alimony, equitable distribution of marital assets and debts, and the development of the parenting plan.

The divorce process can be very emotional and traumatic for couples as well as their kids. Spouses often do not know their legal rights and obligations. Court clerks and judges can answer some basic questions but cannot give legal advice.

Everybody Makes Mistakes

If you have a 401(k) or other retirement account and your soon-to-be-ex is entitled to a percentage of the distribution, be careful how you arrange the split. If you take the money out of you 401(k) and then give it to your soon to be ex, there will be a 20% tax withholding. Additionally, if the account holder is younger than age 59½, a 10% penalty for early withdrawal could apply.

Instead, you may need an a qualified domestic relations order, or QDRO. This is a separate order from the divorce agreement which gets approved by the court and sent to the plan administrator – who also must approve it.

Sometimes, divorcing couples sell the family home and divide the proceeds as dictated in their agreement. Other times, one of the spouses remains in the house. In this situation, depending on the specifics, there are a few things to watch for.

For starters, assuming your ex will no longer be a joint owner or responsible for any mortgage on the home, you would need to refinance the loan and qualify for it on your own. Otherwise the ex spouse would still be liable for the unsatisfied mortgage.

The CNBC article is here.